Saturday, May 28, 2016

No handcuffs for open carry

From the Huffington Post:

Every part of Shawn Northrup's midsummer evening walk with his wife, daughter, grandson, and dog was legal -- including the holstered handgun he openly carried on his hip. But that was not enough to keep Northrup from being disarmed, handcuffed, and threatened with arrest by a police officer. Fortunately, the Sixth Circuit Court of Appeals refused to let the officer who illegally detained Northrup escape accountability, exemplifying the kind of judicial engagement that is needed to protect law-abiding citizens from unreasonable searches and seizures.
Northrup, a resident of Toledo, Ohio, was enjoying a peaceful walk with his family when a passing motorcyclist, Alan Rose, caught sight of his firearm and yelled that Northrup could not "walk around with a gun like that." Northrup's wife, Denise, informed Rose (correctly) that it is perfectly legal to openly carry firearms in Ohio. Rose nonetheless called 911, stating that he had observed "a man carrying his gun out in the open." The dispatcher also told Rose that it is legal to openly carry firearms in Ohio but, apparently a bit uncertain, directed Officer David Bright of the Toledo Police Department to the scene, relating to Bright that Northrup was "walking his dog ... carrying a handgun out in the open."
When Bright encountered Northrup, Northrup was still walking his dog, his gun secure in its holster. What happened after Bright stepped out of his vehicle and approached Northrup is disputed. According to Northrup, Bright announced that he would shoot Northrup if he went for his weapon, refused to any answer questions about what was going on or whether Northrup was free to leave, and threatened to arrest Northrup for "inducing a panic." Ultimately, Bright disarmed Northrup, placed him in handcuffs, and put him in a squad car, where he remained for half an hour. Upon discovering that Northrup had a concealed-carry permit (which, in point of fact, he did not need in order to openly carry his gun), Bright released Northrup with a citation for "failure to disclose personal information." (The charges were later dropped.)
Northrup sued Bright and other members of the Toledo Police Department in federal court, alleging violations of his rights under the First, Second, and Fourth Amendments as well as state law. The district court rejected Northrup's First and Second Amendment claims but held that his Fourth Amendment and state-law claims against Bright could go to trial. Bright then appealed to the Sixth Circuit, asserting qualified immunity from suit. Qualified immunity protects police officers from being held personally liable for violating rights unless those rights are "clearly established." In practice, this judge-made doctrine all too often insulates police misconduct from both liability and meaningful judicial scrutiny.
It has long been established that the Fourth Amendment prohibits officers from coercively stopping and frisking people without any reasonable suspicion that they are committing a crime or are about to commit a crime. In the case of Terry v. Ohio (1968), the Supreme Court defined "reasonable suspicion," explaining that officers must be able to point to specific, observable facts and evidence indicating that a person is "armed and dangerous" -- an inarticulate "hunch" or intuition will not suffice. Nor is it enough for officers to suspect that a person is armed. As the Tenth Circuit would later put it, to hold that the presence of a gun is sufficient to justify a frisk would be to "effectively eliminate Fourth Amendment protections for lawfully armed persons."
In a carefully reasoned opinion, Judge Jeffrey Sutton determined that if Northrup's account of the events was accurate, whatever suspicions Bright may have harbored that Northrup was committing a crime or was about to do so were not reasonable. The specific facts that Bright relied upon in stopping, disarming, and detaining Northrup consisted entirely in (1) Northrup's open possession of a firearm, and (2) the 911 call, which informed Bright that Northrup was openly carrying a firearm. Neither of these facts suggested that Northrup was breaking the law or was dangerous. As Judge Sutton pointedly observed, "While the dispatcher and [911 caller] may not have known the details of Ohio's open-carry firearm law, the police officer had no basis for such uncertainty." While Bright argued that he faced a difficult decision -- "respond to the communities' fear and the appearance of the gunman" or "do nothing ... and hope that he was not about to start shooting" -- Sutton rejected this as a false choice. Absent any actual evidence that Bright was "about to start shooting," Sutton reasoned, "Bright's hope ... remains another word for the trust that Ohioans have placed in their State's approach to gun licensure and gun possession."
No law-abiding American out for a walk with his family and his dog should end up in the back of a police car. No officer responsible for putting him there should be able to escape responsibility for his misconduct. Judge Sutton's decision provides a blueprint for ensuring that those who enforce the law are not beyond its reach. As for Bright, a jury of Ohioans will determine whether he betrayed their trust.